First Nat. Bank v. Donohoe , 293 S.W. 217 ( 1927 )

The controversy respecting the alleged conversion of 13 bales of cotton seems to have been left to the court, instead of the jury, for decision. No request was made to have the jury decide it. As the court's judgment involves the finding of all issues in that respect in favor of appellant, it would have to be sustained, since there is evidence to support the court's findings of fact therein recited. The appellant seems to urge that the evidence admittedly shows a valid chattel mortgage in its favor on all the cotton, and to the extent of unpaid indebtedness to its value. We fail to find such conclusive evidence in the record. And, further, as the record seems to reflect, the deposit with the clerk seems to have been in the nature of a tender into court of that sum in satisfaction of the appellee's claim on the cotton. Either of the grounds stated above would require the affirmance of the court's judgment as to the said claim.

The appellee pleaded that he sustained "damages in the sum of $1,200 that he could and would have made above all expenses in the feed business, by reason of such failure and breach of agreement" on the part of the bank in failing to provide working capital for the enterprise. Therefore a judgment for $1,500, as entered, would be, as is urged, ordinarily fundamentally erroneous in amount. But that is unimportant in view of our conclusion that appellant's contention should be sustained that the appellee cannot recover at all on the contract alleged or upon the evidence offered in respect thereto. The contract shows and the evidence establishes that it was an agreement to finance a new "feed business" as such, and not an established commercial business; and the profits the plaintiff claims would have resulted from the act of the bank had it financed the enterprise as agreed are purely speculative and anticipatory, and incapable of recovery. 1 Sutherland on Damages (3d Ed.) § 67; 17 C.J. § 117, p. 795; 8 R.C.L. § 69, at page 511; Fraser v. Milling Smelter Co., 9 Tex. Civ. App. 210,28 S.W. 714; Walter Box Co v. Blackburn (Tex.Civ.App.) 157 S.W. 220. The cases cited are not applicable of National Bank of Cleburne v. M. M. Pittman Roller Mill (Tex.Com.App.) 265 S.W. 1024, 36 A.L.R. 1405; Norris Lumber Co v. Harris (Tex.Civ.App.) 177 S.W. 515; Grand Prairie Gravel Co. v. Wills Co. (Tex.Civ.App.) 188 S.W. 680; and other similar cases.

The judgment is modified so as to deny a recovery for the $1,500, and as so modified is in all things affirmed. The cost of appeal to be taxed against appellee.